Citation Nr: 21027703 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-30 646 DATE: May 6, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss disability prior to May 4, 2015 is denied. Entitlement to a disability rating in excess of 50 percent for bilateral hearing loss disability from May 4, 2015 to March 18, 2016 is denied. Entitlement to disability rating in excess of 20 percent for bilateral hearing loss disability from March 19, 2016 to January 20, 2020 is denied. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss disability from January 21, 2020 to January 6, 2021 is denied. Entitlement to a disability rating in excess of 70 percent for bilateral hearing loss disability as of January 6, 2021 is denied. FINDINGS OF FACT 1. Prior to May 4, 2015, the Veteran's hearing loss disability was equivalent to Level IV in the right ear and Level VIII in the left ear. 2. For the period from May 4, 2015 to March 18, 2016 the Veteran's hearing loss disability was equivalent to Level VIII in both ears, based on the findings of the private audiological evaluation. 3. For the period of March 19, 2016 to Jan 20, 2020, the Veteran's hearing loss disability was equivalent to Level III hearing loss in the right ear and Level VII hearing loss in the left ear. 4. For the period from January 21, 2020 to January 6, 2021, the Veteran's hearing loss disability was equivalent to a Level VI hearing loss in both ears as measured using Table VIa. 5. As of January 6, 2021, the Veteran's hearing loss disability was equivalent to a Level VIII hearing loss in the right ear and a Level XI hearing loss in the left ear using Table VI. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for bilateral hearing loss disability prior to May 4, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a disability rating in excess of 50 percent for bilateral hearing loss disability from May 4, 2015 through March 18, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for entitlement to a disability rating in excess of 20 percent for bilateral hearing loss disability from March 19, 2016 to January 20, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for entitlement to a disability rating in excess of 30 percent for bilateral hearing loss disability from January 20, 2020 to January 6, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 5. The criteria for entitlement to a disability rating in excess of 70 percent for bilateral hearing loss disability as of January 6, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from January 1958 to January 1960. This matter was previously before the Board in September 2017 when the claim for increased disability rating prior to May 4, 2015 was denied. The decision also granted a 50 percent rating for the period of May 4, 2015 through March 18, 2016 and assigned a 20 percent disability rating as of March 18, 2016. The Veteran appealed the matter to the Court of Appeals for Veterans Claims (Court), which in May 2019 issued a Memorandum Decision setting aside the Board's decision and remanding it to address deficiencies as to both schedular and extraschedular ratings. The Board then remanded the matter in October 2019 with instructions to obtain outstanding medical records and address specific questions related to the Court's decision. This matter came again before the Board in March 2010 and was again remanded based on failure to obtain all outstanding records and failure to address the specific questions included in the remand instructions. The matter being before the Board again, the Board has reviewed the actions of the Agency of Original Jurisdiction on remand and finds that the Board's instructions have been followed, the records have been obtained, and the specific questions have been addressed. Therefore, there is no need for further development or delay in adjudicating this matter. Moreover, assignment of a separate rating for Meniere's disease addresses the matter of considering all schedular options prior to consideration of any extraschedular ratings. As explained below, the evidence of record does not trigger the need for extraschedular referral in this case. Increased Rating Hearing loss disability is an area in which the assigned evaluation is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VIa establishes a Roman numeral designation based only on the pure tone threshold average. 38 C.F.R. § 4.85(c). However, Table VIa will only be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.85(c). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Additionally, all of the Veteran's hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran's hearing loss disability has manifested in difficulty hearing speech, which causes difficulties functioning in social and occupational environments. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to a disability rating in excess of 20 percent prior to May 4, 2015 The evidence with respect to the Veteran's hearing loss disability prior to May 4, 2015 is relatively limited. A VA treatment note from December 2013 showed the Veteran's complaints of difficulty hearing or understanding speech in the presence of background noise. (See CAPRI, 12/23/2014.) The audiologist advised the Veteran that he had a significant level of hearing loss and therefore would always have difficulty understanding speech in background noise and when he could not see people's faces when they spoke. At the VA examination in January 2015, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 40 60 55 60 54 LEFT 65 70 60 70 66 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 76 percent in the right ear and of 48 percent in the left ear. The results for the left ear present an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a). Applying the results to Table VI yields a finding of Level IV hearing loss in the right ear and Level VIII hearing loss in the left ear (or, using only Table VIA for the left ear, the result would be V, which is less favorable and thus will not be used). Combining the results using Table VII yields a 20 percent disability rating. 38 C.F.R. § 4.85. Based on a review of the evidence, the Board finds that a disability rating in excess of 20 percent is not warranted. A mechanical application of the rating criteria shows the Veteran's hearing loss disability does not meet the criteria for a higher rating. In reaching this conclusion, the Board has determined that the VA medical examinations are highly probative evidence. The Veteran's lay statements regarding the impact of his symptoms, while competent and credible, do not change the results of his audiometric testing. Therefore, the preponderance of the credible evidence is against an increased evaluation. Entitlement to a disability rating in excess of 50 percent from May 4, 2015 through March 18, 2016 A private audiologist examined the Veteran on May 4, 2015. At that examination, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 60 70 75 70 68.75 LEFT 70 70 70 70 70 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 56 percent in the right ear and 44 percent in the left ear. The results in both ears present an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a). However, use of Table VIA does not produce favorable results as compared to the traditional method and thus such table will not be applied here. Based on the examination results, using Table VI, the Veteran has a Level VIII hearing loss in the right ear and a Level VIII hearing loss in the left ear. Applying these findings to Table VII yields a 50 percent disability rating under 38 C.F.R. § 4.85. Based on the results of this private examination, a 50 percent disability rating was assigned. The examination findings do not warrant a higher disability rating for this period of time. Entitlement to a disability rating in excess of 20 percent from March 19, 2016 to January 20, 2020 The Veteran's hearing loss disability was next evaluated on March 19, 2016 at a VA examination. On that date, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 50 60 60 70 60 LEFT 65 65 55 65 63 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 86 percent in the right ear and 56 percent in the left ear. The results present an exceptional pattern of hearing impairment as to the left ear under 38 C.F.R. § 4.86(a). However, use of Table VIA does not produce favorable results as compared to the traditional method and thus such table will not be applied here. Applying the examination results to Table VI yields a finding of Level III hearing loss in the right ear and Level VII hearing loss in the left ear. These results in turn yield a 20 percent hearing loss based on Table VII under 38 C.F.R. § 4.85. The Board acknowledges that the findings in March 2016 appear to reflect an improvement of some sort in the Veteran's hearing loss disability. The Board specifically sought an expert clarification of this and received one in January 2021. (See C&P Exam, 01/08/2021.) The expert audiologist noted that the findings of the May 2015 private examination included a Maryland CNC test, but it was not administered by one who had been trained in the same way that VA examining audiologists are trained to use that test. In addition, the private examination did not indicate how many words were included in the test or which word list was used. The private audiologist used a female voice in administering the test, rather than a male voice, which is standard for the Maryland CNC test and did not include performance intensity fluctuation. Based on these deviations from how the Maryland CNC speech recognition test was performed, it could not be considered equivalent to the other Maryland CNC tests and test results. As such, the findings from the May 2015 examination were anomalous and ought not to be considered in rating the Veteran's hearing loss. In this instance, of course, the May 2015 private examination results have been used as the basis of the higher, 50 percent, disability rating awarded for the period of May 2015 through March 2016. That rating cannot and will not be disturbed or recalculated based on the January 2021 audiologist opinion. However, in light of that opinion, the Board will rely on the March 2016 VA examination findings in determining that entitlement to a disability rating greater than 20 percent from March 2016 is not warranted. Entitlement to a disability rating in excess of 30 percent from January 21, 2020 to January 6, 2021 The Veteran's next audiological evaluation was at the VA examination in January 2020. At that time, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 65 70 75 75 71.25 LEFT 70 75 75 70 72.50 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 32 percent in the right ear and of 20 percent in the left ear. However, the examiner stated that the Maryland CNC results should not be used in measuring the Veteran's hearing because of issues with language difficulties, cognitive processing, or inconsistent speech discrimination scores which rendered the use of combined pure tone thresholds and speech discrimination scores inappropriate. The examiner's determination that use of speech discrimination scores was inappropriate was supported by the significantly better speech discrimination scores received on the subsequent January 2021 examination. Based on the determination that the use of speech discrimination scores in evaluating the Veteran's hearing loss was inappropriate, the Veteran's pure tone threshold averages were used to compute hearing loss levels on Table VIa. In this instance, that yielded a finding of Level VI for both ears. Applying the results to Table VII yields a 30 percent disability rating. 38 C.F.R. § 4.85. Based on a review of the evidence, the Board finds that a disability rating in excess of 30 percent for hearing loss disability is not warranted for this time period. A mechanical application of the rating criteria shows the Veteran's hearing loss disability does not meet the criteria for a higher rating. In reaching this conclusion, the Board has determined that the VA medical examinations are highly probative evidence. The Veteran's lay statements regarding the functional impact of his hearing loss disability, including the fact that he had stop auctioneering and was having difficulty interacting with other people, have been considered. However, the Board finds that these are contemplated in the assigned disability rating and are not sufficient to warrant a referral for extraschedular consideration or a higher schedular rating. Therefore, the preponderance of the credible evidence is against an increased evaluation. Entitlement to a disability rating in excess of 70 percent for bilateral hearing loss disability as of January 6, 2021 is denied. During the pendency of this appeal, the Veteran was afforded another VA examination in January 2021. At that examination, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 60 70 75 75 70 LEFT 70 75 75 70 73 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 44 percent in the right ear and of 32 percent in the left ear. The examiner stated that used of the Maryland CNC results was appropriate. Exceptional patterns of hearing were shown as to both ears pursuant to 38 C.F.R. § 4.86(a). However, use of Table VIA does not produce favorable results as compared to the traditional method and thus such table will not be applied here. (Continued on the next page) Applying the results of the tests to Table VI yielded a finding of Level VIII for the right ear and a Level XI for the left ear. Applying the results to Table VII yields a 70 percent disability rating. 38 C.F.R. § 4.85. Based on a review of the evidence, the Board finds that a disability rating in excess of 70 percent for hearing loss disability is not warranted for this time period. A mechanical application of the rating criteria shows the Veteran's hearing loss disability does not meet the criteria for a higher rating. In reaching this conclusion, the Board has determined that the VA medical examinations are highly probative evidence. The Veteran's lay statements regarding his symptoms, including difficulty talking on a land line telephone or conversing with people even at a short distance have been considered. However, the Board finds that these are contemplated in the assigned disability rating and are not sufficient to warrant a referral for extraschedular consideration or a higher schedular rating. Therefore, the preponderance of the credible evidence is against an increased evaluation. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.